UPDATE: Joan McCarter
Sotomayor: “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
UPDATE: Joan McCarter
The court decides 6-3 that the First Amendment bars Colorado from forcing a website designer to create wedding websites for LGBTQ couples. They hold discrimination and refusing service to someone based on their sexual identity is protected by the First Amendment.
The Supreme Court could have another bombshell for civil rights lurking among the last three decisions it will issue for the term Friday. In 303 Creative v. Elenis, it will decide an issue of huge consequence for the enforcement of civil rights laws in this country—whether a public accommodations law that protects against discrimination can compel an artist to speak or stay silent in violation of the Free Speech Clause of the First Amendment. It turns out, the case largely hinges on what appears to be a very big lie on the part of the plaintiff.
In it, a web designer named Lorie Smith claims that Colorado’s Anti-Discrimination Act is preventing her from fulfilling her dream of creating wedding websites, because as a devout Christian she does not want to have work with LGBTQ couples. The case follows the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission, and it’s the second attempt by right-wing Alliance Defending Freedom to get the Supreme Court to endorse anti-LGBTQ bigotry, though the implications extend well beyond that protected class of people. In that case, a cake baker didn’t want to make wedding cakes for LGBTQ couples. The court ruled for the baker, but didn’t go so far as to say a business owner’s religious beliefs or free speech rights can justify refusing some services to gay people.
Here’s where we get to the weird part, uncovered by reporter Melissa Gira Grant for The New Republic: how the Alliance got 303 Creative to the Supreme Court is based on what appears to be pure fiction. The case was brought to United States District Court in Colorado on Sept. 20, 2016. The day after the case was filed, Sept. 21, Smith allegedly received her very first inquiry for a wedding website design—remember, she did not have a wedding business then—from a person named “Stewart” who was marrying a person named “Mike.”
For seven years, no one bothered to check in with Stewart about his inquiry, even though his full contact information was included in a follow-up filing by Smith and the Alliance. Then Grant decided to call him, and found out that not only did he have no clue he was part of a Supreme Court case, he’s been married to a woman for years, is a web designer himself, never heard of Lorie Smith and never contacted her about a wedding website. Grant’s call to him, he told her he said, was “the very first time I’ve heard of it.”
RELATED STORY: Supreme Court hears another pro-bigotry, anti-LGBTQ case and again proves its illegitimacy
All of the contact information—name, phone number, email address, and website—he supposedly included on his inquiry form to Smith’s business is his. But he swears he never made it. “If somebody’s pulled my information, as some kind of supporting information or documentation, somebody’s falsified that,” Stewart told Grant.
“I wouldn’t want anybody to … make me a wedding website?” he continued, sounding a bit puzzled but good-natured about the whole thing. “I’m married, I have a child—I’m not really sure where that came from? But somebody’s using false information in a Supreme Court filing document.”
Grant acknowledges the possibility that it was a prank on Stewart’s part seven years ago that he’s not owning up to now, but it seems pretty unlikely since he lives in San Francisco and it would be awfully bizarre for him to pick a random person in Colorado who does not do wedding websites to do one for him and “Mike.” What seems much likelier is that someone associated with the Alliance or Smith looked for a random person in San Francisco (they’re all gay, right?) and created a fake inquiry to bolster the case.
The implications of this case are huge, and go beyond protections for LBTGQ people. As Justice Sonia Sotomayor encapsulated it in oral arguments last December, this is “the first time in the Court’s history … [that] a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.”
“What if a wedding website maker doesn’t believe in interracial marriage or letting disabled people get married?” Sotomayor asked during arguments. Should they legally be able to refuse to provide their service? Justice Ketanji Brown Jackson picked up the theme, asking whether a photographer taking photos of children with Santa could refuse to take photos of Black kids with Santa. The Alliance’s general counsel (and president and CEO) who represented Smith Kristen Waggoner hedged. “They are difficult lines to draw. That may be an edge case.”
This is a profoundly dangerous case, and it appears to be based on a lie; a lie that the case hinges on procedurally, or should, because it is all based on the mere possibility that some gay couple someday would want to use Smith’s business that does not yet exist. She has not been harmed by that yet.
Colorado’s Attorney General Philip Weiser pointed that out in a brief to the court. “The record contains no evidence,” he wrote, “that anyone has asked the company to create a website for a same-sex wedding; that Colorado has threatened enforcement; or that any future wedding website would convey a message that would be attributed to the company.” The supposed inquiry from Stewart is still in the case files, but the Alliance hasn’t used it before the Supreme Court.
This case should not be before the court at all, but here we are on the brink of another momentous civil rights decision in the hands of an extremist court that could be based on what appears to be a lie.
Speaking of extremists, there’s another problem for the court in this case. Justice Amy Coney Barrett has had a paid professional relationship with the Alliance. Between 2011 and 2016, Barrett was paid five times for speaking to law students in the Alliance’s Blackstone Legal Fellowship, a summer program teaching a “distinctly Christian worldview in every area of law.” Barrett did not recuse from the case.
For Stewart’s part, he wants the world to know “I disagree with this, in the strongest possible terms … I couldn’t disagree with [Smith’s] stance more.”